As a result of the concordance legal politics, not only legal dualism but also legal pluralism was created in the Dutch East Indies. On the one hand, European law applies to Europeans, on the other hand, customary law and Islamic law apply to Bumi Putera. In addition, within customary law there are various different customary regulations, depending on the customary community system in question. Discriminatory legal politics became increasingly apparent when the Dutch East Indies Government regulated the differentiation of population groups, including:

  1. European Group
  2. Bumi Putera Group
  3. Group equated with Europe

In 1866 the codification of criminal law in Indonesia was carried out and made for the European group. In 1872 the criminal code was enacted which applied to the Bumi Putra and Foreign Eastern groups, the substance of which was similar to the criminal law for the European group. Based on Article 75 RR 1854, wetboek van strafrecht or the Criminal Code which is a replica Code Penal from France also applies in the Dutch East Indies. However, in 1915 a new criminal law codification was made, namely wetboek van strafrecht which applies in 1918 to realize the unification of criminal law applicable to all groups of people and legal groups in the territory of Indonesia.

The population groups in the Dutch East Indies according to Article 109 RR are divided into those who colonize and those who are colonized. The European group is the colonizing party, and the Bumi Putera is the colonized party. The legal regulations that apply to Bumi Putera are regulated in Article 75 RR, namely, judges in examining cases must apply European civil law to Europeans, and customary law to indigenous people. In 1920, several articles in the RR were amended, one of which was the new Article 75 RR which stated that the distinction of population groups was based on the criteria of immigrants and those who were visited. Regarding the population groups of the Dutch East Indies, they were divided into 3 groups, namely European, Bumi Putera, and Foreign Orientals.

In 1925, the Dutch government issued the constitutional law of the Dutch East Indies, namely IS 1926 which then replaced RR 1854 in its entirety. The legal politics of the Dutch government in IS 1926 still reflects discriminatory power and a divide and conquer policy. Article 163 IS regulates 3 groups of residents of the Dutch East Indies, namely:

  1. The European group, namely all Dutch people, all those from Europe, all Japanese people (due to a trade agreement between Japan and the Netherlands), all people from countries whose legal principles are the same as the legal principles of the Netherlands.
  2. Bumi Putera group (Inlander), native indigenous people, other population groups who have merged into the indigenous group.
  3. Foreign Orientals, all people who do not belong to the European and Bumi Putera groups, namely Chinese, Arabs, Pakistanis.

The following is the classification of laws based on groups according to Article 131 IS:

  1. European group, criminal law applies WvS and criminal procedure law applies RSv, civil law applies BW and WvK, civil procedure law Rv.
  2. Bumi Putera group, European criminal law WvS, criminal procedure HIR. Civil law is subject to customary law, in certain fields it is subject to European law. Civil procedure is subject to European law, in Java and Madura using HIR, outside Java Madura using RBg.
  3. Foreign Oriental group, criminal law uses WvS, criminal procedure HIR or RSv, for certain matters it is subject to customary law, BW and WvK. Civil procedure is subject to European law, sometimes using Rv, HIR, RBg.

The Japanese government in Indonesia was implemented based on Japanese military regulations, namely Osamu Sirei No. 1 of 1942, in Article 3 it is stated that, all government bodies and their powers, laws and regulations, from the previous government, remain valid for the time being, as long as they do not conflict with military government regulations.

Based on the provisions of article 3 Osamu Seirei 1942, the regulations of the Dutch East Indies era regulated in IS 1926 are still valid. Thus, the codification of civil law and commercial law, BW and WvK are still valid. In addition to using WvS, criminal law also uses Japanese military criminal law, namely Gunseirei 1942 and Osamu Seirei No. 25 1944.

History of Legal System in the Post-Independence Period

During the Old Order era, precisely at the beginning of independence, the government was based solely on the 1945 Constitution. If elaborated, the state government system as explained in the Elucidation of the 1945 Constitution is as follows:

  1. Indonesia is a country based on law.
  2. Constitutional system.
  3. The highest state power is in the hands of the People's Consultative Assembly.
  4. The President is the highest state administrator under the assembly.
  5. The President is not responsible to the DPR.
  6. State ministers are assistants to the President and are not responsible to the DPR.
  7. The power of the head of state is unlimited

In this period, there were ups and downs in the development of the 1945 Constitution as follows:

  1. The 1945 Constitution was in effect from August 18, 1945 - December 27, 1949.
  2. The 1949 RIS Constitution was in effect from December 27, 1949 - August 17, 1950.
  3. The Provisional Constitution of 1950 was in effect from August 17, 1950 - July 5, 1959
  4. The 1945 Constitution was reinstated based on the Presidential Decree on July 5, 1959.

Unfortunately, the 1945 Constitution at the beginning of independence was considered ineffective. The reason is that the Indonesian government was still in transition, then legal institutions and systems were not yet available. Then, there was also the influence of the Netherlands which tried to recolonize.

The New Order government was seen as a corrective action against the deviant implementation of the 1945 Constitution during the Old Order era. One of the actions relevant to legal politics was the issuance of MPRS Decree No. XX/MPRS/1966. The provisions of Article 2 of the MPRS stated that the source of legal order and the order of laws and regulations apply to the implementation of the 1945 Constitution purely and consistently.

In the MPRS decree, a comprehensive structure was also proclaimed by making Pancasila the source of Indonesian legal order; in the source of legal order in Indonesia, Pancasila is used as the source of all sources of law. The same MPRS decree also regulates the order of regulations, including:

  1. 1945 Constitution;
  2. Decrees of the Provisional People's Consultative Assembly;
  3. Laws/Government Regulations in Lieu of Laws;
  4. Government Regulations;
  5. Presidential Decrees; and
  6. Other implementing regulations (Ministerial Regulations, Ministerial Instructions, etc.)

In addition to changes in the Indonesian legal system, legal politics in this reformation era have also changed. The changes lead to a more open and democratic legal system. In this era, there were also amendments to the 1945 Constitution. The following are the amendments to the 1945 Constitution that occurred during the reformation era:

  1. 1st Amendment, October 19, 1999
  2. 2nd Amendment, August 18, 2000
  3. 3rd Amendment, November 9, 2001
  4. 4th Amendment, August 10, 2002

The following is the substance of the Amendments to the 1945 Constitution:

  1. Changes and limitations on the authority of the MPR, which was originally authorized to elect the President and Vice President and determine the GBHN. After the amendment, the MPR became a high state institution, and was authorized to amend and stipulate the Constitution
  2. The President and Vice President are not elected by the MPR, but are elected directly by the people, limiting the President's authority in making laws
  3. Regional governments are given autonomy to manage their own government affairs
  4. Strengthening the position of the DPR (legislative heavy)
  5. Establishment of the DPD as a regional representative
  6. Establishment of the Constitutional Court which has the authority to review laws, and the Judicial Commission as a supervisor of judicial institutions.
  7. Recognition of human rights strengthened by the ratification of various international regulations.

The provisions of the Hierarchy of laws and regulations have also undergone changes which were previously based on MPRS Decree No. XX/MPRS/1966, into Law No. 12 of 2011 concerning the establishment of laws and regulations consisting of:

  1. UUD 1945
  2. TAP MPR
  3. UU/PERPU
  4. PERATURAN PEMERINTAH
  5. PERATURAN PRESIDEN
  6. PERATURAN DAERAH PROVINSI
  7. PERATURAN DAERAH KAB/KOTA.

Conclusion

Legal system comes from the Dutch word “recht orde”, which is the legal system which means giving the real place to the law. What is meant by “giving the real place”, namely arranging the legal rules well and orderly in social life so that the applicable provisions can be easily known and used to resolve every legal event that occurs.

History and development Indonesian legal system is a reflection of a long journey influenced by various factors, both internal and external. Starting from customary law which is rich in local values, the Indonesian legal system underwent significant transformation during colonization, especially by the Dutch, who introduced Western law. This process created tension between customary law and colonial law, which continued until the era of independence.

After the 1945 proclamation, Indonesia sought to build a legal system that reflected its national identity and the diversity of its society. Various new laws and regulations were formulated to replace the colonial legal system, as well as accommodate customary law and Pancasila values. The reform era in the late 1990s marked an important turning point, with an emphasis on democratization and the protection of human rights.

Bibliography

  • Jamali, R. Abdoel. 1984. Introduction to Indonesian Law. Jakarta: CV. Rajawali.
  • Muljana, Slamet. 1967. Perundang-Undangan Majapahit. Jakarta: Bharatara.
  • Sasongko, Wahyu. 2013. Sejarah Tata Hukum Indonesia. Lampung: PKKPUU FH Unila.
  • Soebekti. 1984. Introduction to Indonesian Law. Jakarta: Raja Grafindo Persada.
  • Soetandyo. 1994. Dari Hukum Kolonial ke Hukum Nasional. Jakarta: Raja Grafindo.
  • Soetaprawiro, Koerniatmanto. 1994. Pemerintahan dan Peradilan di Indonesia, Asal Usul dan Perkembangannya. Bandung: PT. Citra Aditya Bakti.
  • Sutopo, Umarwan. 2021. Pengantar Tata Hukum di Indonesia. Surabaya: Sinergi Karya Mulia.
  • Sugiarto, Umar Said. 2012. Introduction to Indonesian Law. Malang: Sinar Grafika.
  • Supomo. 1972. The Legal System in Indonesia. Jakarta: Paramita.
  • Tresna, R. 1978. Justice in Indonesia. Jakarta: Paramita.
  • Utrecht, E. 1966. Introduction to Indonesian Law. Jakarta: Ichtiar.
  • Wignjodipuro, Surojo. 1979. Introduction and Principles of Customary Law. Bandung: Alumni.
  • Wolhoff. 1955. Introduction to Constitutional Law. Jakarta: CV. Timun Mas.